jesse c. trentadue (#4961) britton r. butterfield (#13158 ... · pdf fileestate also named...

Jesse C. Trentadue (#4961)

Britton R. Butterfield (#13158)

SUITTER AXLAND, PLLC8 East Broadway, Suite 200

Salt Lake City, Utah 84111

Telephone: (801) 532-7300

Facsimile: (801) 532-7355

E-mail: [email protected]

E-mail: [email protected]

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION

VANCE NORTON, GARY JENSEN, KEITHCAMPBELL, ANTHONEY BYRON,BEVAN WATKINS, and TROY SLAUGH,

Plaintiffs,v.

THE UTE INDIAN TRIBE OF THE UINTAHAND OURAY INDIAN RESERVATION, afederally recognized Indian Tribe; theBUSINESS COMMITTEE FOR THE UTEINDIAN TRIBE OF THE UINTAH ANDOURAY INDIAN RESERVATION, in itsofficial capacity; the UTE TRIBAL COURTOF THE UINTAH AND OURAY RESERVATION; the HONORABLEWILLIAM REYNOLDS, in his officialcapacity as Acting Chief Judge of the UteTribal Court; DEBRA JONES and ARDENPOST, individually and as the natural parentsof Todd R. Murray; and DEBRA JONES aspersonal representative of the Estate of ToddR. Murray.

Defendants.

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VERIFIED MOTION FOR

PRELIMINARY INJUNCTION and

REQUEST FOR EXPEDITED

HEARING

Case No. 2:15-cv-00300

Judge: Dee Benson

ORAL ARGUMENT REQUESTED

Case 2:15-cv-00300-DB Document 32 Filed 06/17/15 of 27

mailto:[email protected]

mailto:[email protected]

MOTION

This action arises out of the death of Todd R. Murray on April 1, 2007, which in 2009,

resulted in civil rights and common law wrongful death claims being brought first in the Utah

State District Court and then removed to the United States District Court for the District of Utah.

That lawsuit was brought by Todd R. Murray’s parents, Debra Jones and Arden Post as well as

the Estate of Todd R. Murray. Hereinafter, that federal court case will be referred to as the

“Original Murray Action.”

In the Original Murray Action, after years of contentious litigation, the District Court

found that Murray had in fact committed suicide and, therefore, entered summary judgment in

favor of all of the defendants on the civil rights claims, and dismissed the State common-law

claims without prejudice. That matter is now on appeal to the United States Court of Appeals1

for the Tenth Circuit. 2

If the District Court’s judgment is upheld on appeal, it will also dispose of any wrongful

death claims associated with Murray’s death. That is undoubtedly why, on March 5, 2015, the

Ute Tribe joined with the Murray’s parents and Estate to file another lawsuit in the Ute Tribal

Court seeking damages for their alleged injuries arising out of Todd R. Murray’s suicide. That3

lawsuit filed in Tribal Court will be hereinafter referred to as the “Re-filed Murray Action.”

See Judgment, Jones et al v. Norton et al., Case No. 2:09CV00730, Doc. 453, Exhibit 11

hereto.

Notice of Appeal, Case No. 2:09CV00730, Doc. 436, Exhibit 2 hereto.2

See Tribal Court Complaint, Doc. 2-1.3

2


In that Re-filed Murray Action, the Ute Indian Tribe, Murray’s parents, and Murray’s

Estate named as defendants, among others, Vernal City Officer Norton, Deputy Byron, Deputy

Watkins, and Deputy Slaugh, all of whom had been defendants in the Original Murray Action. 4

In the Re-filed Murray Action, the Ute Indian Tribe, Murray’s parents and his Estate also named

as defendants Gary Jensen and Keith Campbell. Jensen was the Chief of Police of Vernal City at

the time of Murray’s suicide and Campbell was at that time both a Deputy Uintah County Sheriff

and a Deputy Medical Examiner for the Utah State Office of the Medical Examiner. But neither

Jensen nor Campbell were named as a defendants in the Original Murray Action. In the Re-filed

Murray Action, Vance Norton, Gary Jensen, Keith Campbell, Anthoney Byron, Bevan Watkins,

and Troy Slaugh are named solely in their “individual and unofficial capacity.” 5

In response to the Re-filed Murray Action, Vance Norton, Gary Jensen, Keith Campbell,

Anthoney Byron, Bevan Watkins, and Troy Slaugh (collectively “Uintah/Vernal Plaintiffs”)

commenced this action. The Uintah/Vernal Plaintiffs seek this Court’s review of the Ute Tribe

and Ute Tribal Court’s jurisdiction and lawful authority over them in the Re-filed Murray Action.

The Uintah/Vernal Plaintiffs have named as defendants herein the Ute Tribe, the Ute Tribal

Court, Honorable Williams Reynolds Chief Judge of the Ute Tribal Court, the Ute Tribal

Business Committee, Debra Jones, Arden Post and the Estate of Todd Murray (collectively

Other State law enforcement officers also named in the Re-filed Murray Action were4

named as Defendants in the Original Murray Action. Those State officers have moved tointervene as co-plaintiffs in this action. See Motion to Intervene, Doc. 12.

See Doc. 2-1.5

3


“Tribal Defendants”). 6

Wherefore, pursuant to Federal Rule of Civil Procedure 65 and the Court’s inherent

power to preserve its jurisdiction, the Uintah/Vernal Plaintiffs hereby move for a preliminary

injunction to stay the Tribal Defendants’ prosecution of the Re-filed Murray Action until this

Court can complete its review of and decide the lawfulness of the Ute Tribal Court’s assertion of

jurisdiction over them in the Re-filed Murray Action. The Uintah/Vernal Plaintiffs likewise

request an expedited hearing on this Motion.

MEMORANDUM OF LAW

Plaintiffs hereby submit the following Memorandum in support of their Motion for

Preliminary Injunction.

STATEMENT OF FACTS

Pursuant to 28 U.S.C. § 1746, Jesse C. Trentadue, hereby declares as follows:

1. The matters set forth herein are based upon my personal knowledge:

2. On April 1, 2007, Todd R. Murray died. Thereafter, his parents and

Estate brought the Original Murray Action, first in the Utah District Court for the Eighth District.

That case was removed without objection to the United States District Court for the District of

Utah. The Original Murray Action asserted federal and state civil rights and common-law tort

and wrongful death claims.

3. Named as defendants in the Original Murray Action were Vernal City Police

The Uintah/Vernal Plaintiffs seek only declaratory and prospective injunctive relief, not6

monetary damages, and the Business Committee are named solely in their official capacities.

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Officer Norton, Uintah County Deputy Sheriffs Anthoney Byron, Bevan Watkins and Troy

Slaugh, and almost everyone else who happened to show up at the scene of Murray’s death. 7

According to Ms. Jones, and Mr. Post, that lawsuit was fully funded by the Ute Tribe, and8

without doubt the Ute Tribe is also funding the Re-filed Murray Action.

4. In the Original Murray Action, Norton was sued in both his individual and official

capacities. The other Uintah/Vernal Plaintiffs in the Original Murray Action were sued only in9

their individual capacities.10

5. The Complaint in the Original Murray Action alleged that each of the Defendants

in that action was “at all times . . . acting under color of state laws and as employees of their

respective law enforcement agencies.”11

6. On March 7, 2014, the United States District Court granted Summary Judgment in

favor of all of the defendants, including Norton, Byron, Watkins, Slaugh and the State officers,

dismissing the civil rights claims with prejudice. The Court declined to exercise supplemental

See Second Amended Complaint, USDC Case No. 2:09-CV-00730, Doc. 63, Exhibit 37

hereto. The Tribal Defendants have even sued the Unites States for damages arising out of ToddR.. Murray’s suicide. See Jones et. al. v. United States, Federal Court of Claims Case No. 1:13-CV-227.

See Jones Deposition Exhibit 4 hereto; and Post Deposition Exhibit 5 hereto.8

See Second Amended Complaint,¶ 3, Exhibit 3 hereto. 9

Id. at ¶¶ 8 through 15.10

See Second Amended Complaint, Exhibit 3 hereto, ¶ 45; see also ¶¶ 77, 93, 103,11

130, 139; see also Third Amended Complaint, Doc. 170, ¶¶ 44, 74, 76, 93, 94, 113,

Exhibit 6 hereto.

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jurisdiction over the state common-law claims. Specifically, the Court found that Todd R.12

Murray had committed suicide. Judge Campbell’s ruling is now on appeal to the United States13

Court of Appeals for the Tenth Circuit.14

7. On March 5, 2015, the Tribal Defendants brought the Re-filed Murray Action

asserting therein the dismissed common-law claims, and again seeking damages for injuries

allegedly arising out of Todd R. Murray’s death. Named as defendants in the Re-filed Murray15

Action are, among others, Vernal City Officer Norton, Deputy Byron, Deputy Watkins, and

Deputy Slaugh and the State officers, all of whom had been defendants in the Original Murray

Action.

8. In that Re-Filed Murray Action, the Ute Tribe, Murray’s parents and his

Estate also named Gary Jensen and Keith Campbell as defendants. Jensen was the Chief of

Police of Vernal City at the time of Murray’s suicide and Campbell was at the time both was a

Deputy Uintah County Sheriff as well as Deputy Medical Examiner for the Utah State Office of

the Medical Examiner. But neither Jensen nor Campbell were named as a defendants in the

Original Murray Action. 16

Memorandum Decision, Doc. 430 USDC Case No. 2:09-CV-00730, Exhibit 7 hereto. 12

Id. at pp 28-30.13

See Notice of Appeal, Exhibit 2 hereto.14

See Re-filed Murray Complaint, Doc. 2-1.15

The Plaintiffs in the Original Murray Action moved to join Jensen as an additional16

party. See Motion to Add Additional Parties, Doc. 110 District of Utah Case No. 2:09-CV-

00730. The District Court, however, denied that Motion. See id. Order, Doc.198. The

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9. On April 14, 2015, I learned that the Fredericks Peebles & Morgan LLP firm had

re-filed the Murray case in the Ute Tribal Court. I immediately called Jeffrey Rasmussen of that

firm, who along with Fredericks Peebles & Morgan also represent Tribal Defendants in the

instant case, to discuss the matter, including asking him to dismiss the Re-filed Murray Action.

He refused.

10. During that conversation Mr. Rasmussen told me that the Murray case had been

re-filed in the Ute Tribal Court because his clients were “dissatisfied” with the Federal Court’s

decision in the Original Murray Action. Mr. Rasmussen essentially told me that the Tribal Court

had jurisdiction by virtue of the Ute Tribal Code and that the Ute Tribal Court’s jurisdiction was

to be determined under Ute Tribal Law, not Federal Law.

11. On April 21, 2015, I followed up my conversation with Mr. Rasmussen with an e-

mail to him stating therein the substance of our conversation. Mr. Rasmussen responded

essentially disavowing our conversation of April 21, 2015.17

12. On April 30, 2015, Frances Bassett, another of Tribal Defendants’ counsel in the

Original Murray Action, issued a public statement that her clients had re-filed the Murray case in

the Ute Tribal Court “because it was the only forum with jurisdiction to adjudicate the tort

claims related to the death of 21-year old Ute tribal member Todd Murray.” But that was18

Plaintiffs in the Original Murray Action, however, made no similar Motion to join Campbell as adefendant in the Federal Court suit.

A copy of that E-mail exchange is attached hereto as Exhibit 8.17

See Press Statement of Counsel, Exhibit 9 hereto.18

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obviously not so since Ms. Bassett had filed the Original Murray Action in State Court, and the

case was later removed to the United States District Court for the District of Utah. More

importantly, in the initial Complaint that was filed in State Court, Ms. Bassett alleged on behalf

of her clients that: “Jurisdiction lies in this [State] Court because the district courts have

exclusive, original jurisdiction over any action against Vernal City and the State of Utah and/or

their respective employees or agents arising out of the performance of the employee’s duties,

within the scope of their employment, or under color of authority.”19

13. Prior to the filing of the Re-Filed Murray Action, the Ute Tribal Court and Chief

Judge were parties to Poulson v. Ute Indian Tribe. In Poulson, a Duchesne County Judge and20

Deputy Sheriff brought a similar action challenging the jurisdiction of the Ute Tribal Court and

its Chieff Judge to hear claims asserted against them by tribal members. In the Poulson

Complaint, the plaintiffs alleged that:

31. The Ute Tribal Court is housed in a building constructed uponland held in trust for the Ute Tribe by the United States of America,and the Ute Tribal Court’s operations are overseen by the Bureau ofIndian Affairs. The Ute Tribal Court provides judicial services to theUte Tribe and its members that would otherwise have to be providedby the United States of America through the Bureau of Indian Affairs.

32. Pursuant to 25 U.S.C. §§ 3611 through 3631, the Ute TribalCourt is funded and supported by the United States of America. Pursuant to Public Law 93-638, the Ute Tribe has contracted with theBureau of Indian Affairs to operate the Ute Tribal Court.21

State Complaint, Case No. 2:09-CV-730, Doc. 1-2, ¶ 12.19

District of Utah Case No. 2:12-CV-497.20

Amended Complaint, Doc. 17, ¶¶ 31-32, Exhibit 10 hereto. 21

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In their Answer, the Ute Tribal Court and its Chief Judge admitted those allegations without22

qualification.23

14. Plaintiffs and others who are subjected to the jurisdiction of the Ute Tribal Court

are not entitled to the due process and/or other rights normally guaranteed to them under the

United States Constitution in Federal and State judicial proceedings. 24

15. Counsel for Tribal Defendants has stated to this Court that if the Uintah/Vernal

Plaintiffs are subjected to the jurisdiction of the Ute Tribal Court, then the due process accorded

them will be defined by the Ute Tribe, and not by the United States Constitution. 25

Executed in Salt Lake City, Utah under penalty of perjury this 17 day of June, 2015.th

/s/ jesse c. trentadue

EXHAUSTION OF TRIBAL COURT REMEDIES

In an effort to delay the Court’s consideration of this Motion for Preliminary Injunction,

Answer, District of Utah Case No. 2:12-CV-497, Doc. 122, Exhibit 11 hereto.22

Id. at ¶¶ 31 and 32. That is a crucial admission, since it makes the Ute Tribal Court a23

“federal actor” for the purpose of imposing upon that forum the obligation to provide thoseappearing before it their right to due process under the United States Constitution. Cf., Burton v.Wilmington Parking Authority, 365 U.S. 715 (1961)(Public moneys and facilities used to supporta restaurant otherwise privately owned made the restaurant a “state actor” for purposes ofprohibiting the otherwise private restaurant from engaging in conduct violative of theConstitution). Moreover, these same “federal actor” allegations appear in the Uintah/VernalPlaintiffs’ Complaint, which Tribal Defendants have yet to answer. Doc. 2, ¶¶ 30 and 31.

See Talton v. Mayes, 163 U.S. 376 (1986); Trans-Canada Enter. v. Muckleshoot24

Indian Tribe, 634 F.2d 474, 476 (9th Cir. 1980); Settler v. Lameer, 507 F.2d 231, 241-47(9th Cir.1974).

Motion to Dismiss, Doc. 23 at p. 4.25

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the Tribal Defendants will undoubtedly argue that the Uintah/Vernal Plaintiffs must exhaust

their tribal court remedies before asking this Court to review the question of that forum’s

jurisdiction over them. However, it is not necessary for the Uintah/Vernal Plaintiffs to exhaust

the remedies that might otherwise be available to them in the Ute Tribal Court because the

actions of Tribal Defendants are patently violative of express jurisdictional prohibitions, and/or26

because it is otherwise clear that there has been no federal grant to the Ute Tribal Court of

jurisdiction over the conduct of non-members, such as the Uintah/Vernal Plaintiffs. 27

Exhaustion of Ute Tribal Court remedies is likewise not required when it serves no

purpose other than delay, as would be the situation in the present case given the decisional law28

holding that jurisdiction does not exist in the Ute Tribal Court, and/or when the assertion of29

See National Farmers Union Ins. Cos., 471 U.S. at 857 n.21 (Noting that exhaustion26

of tribal court remedies is not required “where the action is patently violative of expressjurisdictional prohibitions”). See also Nevada v. Hicks, 533 U.S. 353, 369 (2001)(Tribal courtshave no jurisdiction over state officials for causes of action arising out of the performance oftheir official duties); MacArthur v. San Juan County, 391 F. Supp. 2d 895, 1037 (D. Utah 2005);MacArthur v. San Juan County, 497 F.3d 1057 (10th Cir. 2007); Montana DOT v. King, 191 F.3d

1100, 1115-116 (9th Cir. 1997); Montana v.Gilham, 133 F.3d 1130,1133 (9th Cir. 1997).

See Strate v. A-1 Contractors, 520 U.S. 438, 459 n. 14 (1981). 27

See Strate, 520 U.S. at 459 n. 14 (1981) (Determining that “when tribal-court28

jurisdiction over an action such as this one is challenged in federal court, the otherwiseapplicable exhaustion requirement . . . must give way, for it would serve no purpose other thandelay”). See also, Burrell v. Armijo, 456 F. 3d 1159, 1168 (10th Cir. 2006) (Exhaustion of tribalcourt remedies is not required when it is clear that the tribal court lacks jurisdiction); and Crowe& Dunlevey, P.C. v. Stidham, 640 F.3d 1140,1150 (10th Cir. 2001)(Exhaustion of tribal courtremedies was not required because tribal court had no jurisdiction over non-members).

See Hicks, 533 U.S. at 369 (Holding since it is clear that tribal courts lack jurisdiction29

over state officials for causes of action relating to their performance of official duties, adherenceto the tribal exhaustion requirement in such cases would serve no purpose other than delay).

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tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith, such as

disrupting the authority and/or functioning of government, which is the obvious purpose of the30

Re-filed Murray Action. More importantly, in a case on point decided over 15 years ago,31

Nevada v. Hicks, the United States Supreme Court made it patently clear that exhaustion of tribal

court remedies is not required of the Uintah/Vernal Plaintiffs, and that this Court does have

jurisdiction to review the Ute Tribal Court’s alleged jurisdiction over them.

In Hicks, the issue before the Supreme Court was whether the Fallon Paiute Tribal Court

had jurisdiction to hear civil claims being asserted against state officials by a tribal member. 32

The claims were for civil rights violations and common-law torts arising out of the execution of

several search warrants by Nevada Fish and Game wardens looking for evidence of an off-

reservation crime allegedly committed by a tribal member. The tribal member sued the state33

officers in both their official and individual capacities, but later dismissed the official capacity

claims and proceeded solely against the officers in their individual capacities.34

The defendants thereafter filed a declaratory action in the United States District Court for

the District of Nevada against both the Fallon Paiute Tribe and the Fallon Paiute Tribal Court

National Farmers, 471 U.S. at 857, n. 21. See also Burrell, 456 F.3d 1159, 1168 (10 th30

Cir. 2006).

See Doc. 17, ¶ 26.31

533 U.S. at 355.32

Id. at 356-57.33

Id. at 357.34

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asking that the District Court declare that the Tribal Court lacked the subject matter jurisdiction

to hear the case. The District Court granted summary judgment in favor of the Tribe, and the35

Ninth Circuit Court of Appeals affirmed. The Supreme Court, however, reversed noting from

the outset of its opinion that the Fallon Paiute Tribal Court was not a court of general

jurisdiction and, as to non-members, a tribe’s adjudicative jurisdiction does not exceed its36

legislative jurisdiction.37

The Supreme Court went on to explain that “State sovereignty does not end at a

reservation’s borders,” and that it is now clear that an Indian reservation is considered to be part

of the territory of the State. Consequently, “[w]hen . . . state interests outside the reservation38

are implicated, States may regulate the activities even of tribal members on tribal land. . . .” 39

In announcing the foregoing point s of law, the Hicks Court considered and specifically

rejected the argument that the Fallon Paiute Tribal Court somehow had jurisdiction because the

officers were sued only in their individual rather than their official capacities. According to the

Hicks Court, the alleged distinction between official and individual capacities suits was

“irrelevant” because the government can only act though its officers and agents, “and if a tribe

can ‘affix penalties to acts done under the immediate direction of the [state] government, and in

Id. 35

Id. at 367.36

Id. at 357-58.37

Id. at 361-62.38

Id. at 362.39

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obedience to its laws.’ ‘The operations of the [state] government may at any time be arrested at

the will of the [tribe].’” The Hicks Court further noted that “‘permitting damages suits against40

governmental officials can entail substantial social costs, including the risk that fear of personal

monetary liability and harassing litigation will unduly inhibit officials in the discharge of their

duties.’” 41

Consequently, with respect to exhaustion requirement that will likely be asserted by the

Tribal Defendants in the instant case, the Supreme Court stated in Hicks that: “Since it is clear, as

we have discussed, that tribal courts lack jurisdiction over state officials for causes of action

relating to their performance of official duties, adherence to the tribal exhaustion requirement in

such cases ‘would serve no purpose other than delay,’ and is therefore unnecessary.” To make42

that point very clear, the Hicks Court went on to state in its opinion that: “[T]here is no need to

exhaust the jurisdictional dispute in tribal court [because] . . . state officials operating on

reservation . . . are properly held accountable for misconduct and civil rights violations in

either State or Federal Court, but not in Tribal Court.” 43

Id. at 365. (Quoting from Tennessee v. Davis, 100 U.S. 257, 263 (1879).40

Id. (Quoting from Anderson v. Creighton, 483 U.S. 635, 638 (1987).41

Id. at 369 (Quoting from National Farmers, 471 U.S. at 459-60, fn. 4).42

Id. Accord, Burrell, 456 F. 3d at1168; Crowe, 640 F.3d at 1150. Furthermore,43

exhaustion of tribal court remedies is not a prerequisite to the existence of Federal Questionjurisdiction. See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 16 n. 8 (1987) (Stating that tribalcourt exhaustion is not a jurisdiction prerequisite); Strate, 520 U.S. at 454. Nor should it bewhen constitutional rights are involved. Cf. Ellis v. Dyson, 421 U.S. 426, 433 (1975)(Exhaustion generally not required in 42 U.S.C. § 1983 suits).

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Another reason that exhaustion is not required in this instance is the futility of requiring

the Uintah/Vernal Plaintiffs to proceed in the Ute Tribal Court given the serious conflicts-of-

interest inherent in that proceeding, which virtually guarantee an adverse decision in that forum.

It would be futile for the Uintah/Vernal Plaintiffs to proceed in the Ute Tribal Court because

counsel for the Tribal Defendants in the instant action, Frederick Peebles & Morgan, also

represent the Ute Tribe, Murray family and Estate in the Re-filed Murray Action, and most44

certainly will, directly or indirectly, control all proceedings in the Ute Tribal Court. More

specifically, the Firm represents not only the Ute Tribe, Ute Tribal Court and Chief Judge, but it

also represents the Ute Business Committee, which controls the Ute Tribe, and the Ute Tribal

Court. 45

Furthermore, because it is the governing authority of the Ute Tribe, it was the Business

Committee that not only authorized the bringing of the Original Murray Action and the Re-filed

Murray Action, but it was also the Business Committee that authorized the Tribe’s payment of

attorneys’ fees in both cases. It is likewise the Uintah/Vernal Plaintiffs’ understanding that the

Business Committee serves as the Ute Tribal Court of Appeals. It is undisputed, too, that

although the Ute Tribal Court is a federal actor because of the financial and other support that it

receives from the federal government, the only due process that the Uintah/Vernal Plaintiffs will

receive in the Ute Tribal Court will be whatever due process is allowed them under tribal law,

and not the due process guaranteed to them under the United States Constitution. Simply stated,

See Motion for Pro HacVice, Doc. 28.44

See Ute Tribal Constitution, Art. III and VI, Exhibit 12 hereto.45

14


under these circumstances not only are the Uintah/Vernal Plaintiffs not likely to receive a

favorable and/or fair decision from the Ute Tribal Court but, because of the conflicts-of-interest,

that ruling could never pass constitutional muster.

SUBJECT MATTER JURISDICTION EXISTS

Subject matter jurisdiction exists because the issues before the Court in this case raise

substantial federal questions both as to the scope of the Tribal Defendants’ jurisdiction and/or

lawful authority over the Uintah/Vernal Plaintiffs, and because of the denial of the rights46

guaranteed to the Uintah/Vernal Plaintiffs under the United States Constitution as a result of the

Ute Tribal Court’s assertion of jurisdiction over the Uintah/Vernal Plaintiffs. 47

Tribal Defendants will likewise undoubtedly assert that subject matter jurisdiction does

not exist because they are entitled to tribal sovereign immunity. However when, as in the instant

case, the Uintah/Vernal Plaintiffs are not seeking monetary damages but only declaratory and

prospective injunctive relief with respect to both the scope of Tribal Defendants’ jurisdiction and

authority over them, and the enforcement of the rights guaranteed to the Uintah/Vernal Plaintiffs

under the United States Constitution, Tribal sovereign immunity is not applicable. If the law

were otherwise, there could never be federal court review of the jurisdiction and authority

See MacArthur v. San Juan County, 309 F.3d 1216, 1225(10th Cir. 2002)46

(Recognizing a “federal right” to be protected against the unlawful exercise of tribal courtjudicial power).

See National Farmers Union Ins. Cos., 471 U.S. at 853; Hicks, 533 U.S. at 353;47

Montana DOT, 191 F.3d at1108; Gilham, 133 F.3d at1133; Santa Clara Pueblo v. Martinez, 436U.S. at 49; Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 15 (1987); El Paso Natural Gas Co. v.Neztsosie, 526 U.S. 473, 483 (1999); Enlow v. Moore, 134 F.3d 993, 995 (10th Cir. 1998).

15


asserted by tribal governments over non-members and/or tribal government’s deprivation of the

civil rights of non-members. Since federal courts are specifically charged with the review of a

tribal government’s authority in these circumstances, there is obviously no tribal immunity

applicable to such actions, which both the District Court and Tenth Circuit made clear in Crowe48

& Dunlevey, P.C. v. Stidham, a case on point. 49

In Crowe, a law firm brought an action against a judge of the Muscogee Creek Nation

District Court for declaratory and injunctive relief challenging that Court’s jurisdiction over the

firm with respect to a dispute over attorneys’ fees, and the Firm further sought a preliminary

injunction to stop the tribal court proceedings pending resolution by the federal court of the

Muscogee Creek Nation Tribal Court’s jurisdiction. The tribal court judge responded with a

Motion to Dismiss on the basis of sovereign immunity and judicial immunity, which the District

Court denied: (1) because the Ex Parte Young Doctrine applied to Indian tribes thereby enabling

federal courts to enjoin a tribes violations of federal rights; and (2) because judicial immunity is50

not a bar to “prospective injunctive relief against a judicial officer acting in [his or] her official

See National Farmers Union Ins. Cos. v. Crow Indian Tribe, 471 U.S. 845, 853,48

(1985) (Holding that “a federal court may determine . . . whether a tribal court has exceeded thelawful limits of its jurisdiction”); Hicks, 533 U.S. at 353; Montana DOT v. King, 191 F.3d 1108(9th Cir. 1999); Montana v. Gilham, 133 F.3d 1133 (9th Cir. 1997); Santa Clara Pueblo v.

Martinez, 436 U.S. 49 (1978); Arizona Public Service Co. v. Aspaas, 77 F. 3d 1128, 1133-334(9th Cir. 1995). Cf., Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961)(Sovereign

immunity is obviously no impediment to enforcing civil rights cases against states).

609 F. Supp. 2d 1211 (N.D. Okl. 2009).49

Id. at pp. 1219-1220.50

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capacity.” On appeal, the Tenth Circuit affirmed the District Court holding that the Muscogee51

Creek Nation Tribal Court had no jurisdiction over the law firm, and that because of the Ex Parte

Young Doctrine, sovereign immunity and judicial immunity did not shield either the Muscogee

Tribes or tribal judge from suits to enjoin violations of federal law.52

PLAINTIFFS ARE ENTITLED TO A PRELIMINARY INJUNCTION

A preliminary injunction is not a preliminary adjudication on the merits, but a device for

preserving the status quo and preventing the irreparable loss of rights before judgment, such as53

the Uintah/Vernal Plaintiffs’ right, as officers of State and local government, to immunity from

suit in a tribal court. Thus, to obtain a preliminary injunction, the Uintah/Vernal Plaintiffs are

only required to show: (1) a substantial likelihood of success on the merits; (2) irreparable harm

unless an injunction is issued; (3) that the threatened injury to Uintah/Vernal Plaintiffs outweighs

any potential harm to the Tribal Defendants; and (4) that the injunction, if issued, would not

adversely effect the public interest. 54

Moreover, the interlocutory injunctive relief allowed under Rule 65 is also particularly

Id. at 1216. (Quoting from Pullman v. Allen, 466 U.S. 522, 541-42 (1984).51

Crowe, 640 F.3d 1140, 1153-56 (10th Cir. 2001). See also Arizona Public Service Co.52

v. Aspaas, 77 F. 3d 1128, 1133-1134 (9th Cir. 1995)(Tribal sovereign immunity does not barsuits for prospective injunctive relief against tribal officers allegedly acting in violation of federallaw).

Textile Unlimited, Inc. v. A. BMH and Company, Inc., 240 F.3d 781, 786 (9th Cir.53

2001).

Prairie Band of Potawatomi Nation v. Wagon, 476 F. 3d 818, 822 (10th Cir. 2007).54

17


appropriate when the temporary restraining order and/or preliminary injunction is directed at an

illegal act, such as Tribal Defendants’ prosecution of the Re-filed Murray Action in the Ute55

Tribal Court, which would not only be in contravention of the Hicks decision, but also result in

the denial to the Uintah/Vernal Plaintiffs of the right of due process guaranteed to them under the

United States Constitution and their “federal right” to be protected against the unlawful exercise

of tribal court judicial power. More importantly, based upon the analysis undertaken by56

both the District Court and Tenth Circuit in Crowe, the Uintah/Vernal Plaintiffs can meet every

requirement for this Court’s issuance of a preliminary injunction.57

A. Likelihood of Success on the Merits

The Tenth Circuit Court of Appeals affirmed the District Court’s issuance of a

preliminary injunction in Crowe. In doing so, the Tenth Circuit analyzed the controlling case58

law and found that the law firm’s “probability of success on the merits is without question.” 59

See Johnson v. Bergland, 586 F.2d 993, 995 (4th Cir. 1978).55

See MacArthur v. San Juan County, 309 F.3d at 1225(Recognizing a “federal right”56

to be protected against the unlawful exercise of tribal court judicial power).

Admittedly, Rule 65(c) speaks in terms of a bond or other security being required for57

issuance of a preliminary injunction. See Fed. R. Civ. P. 65(c). However the Court, in theexercise of its discretion, is free to require no bond when, as in the instant case, “there is anabsence of proof showing a likelihood of harm, See Continental Oil Co. v. Frontier RefiningCo., 338 F.2d 780, 782(10th Cir. 1964); Crowe, 609 F. Supp. 2d at 1226 (No bond was requiredfor issuance since the defendant would suffer no injury as a result of being restrained in itsexercise of jurisdiction over the law firm while the federal court decided the jurisdictional issue).

640 F.3d 1140.58

Id. at 1158(emphasis added).59

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The Tenth Circuit’s reasoning as to the law firm’s unquestionable probability of success on the

merits was based upon an analysis of Montana v. United States, which sets out two exceptions60

to the general rule against tribal court jurisdiction over non-Indians. These Montana exceptions

are: (1) when the non-Indian enters into some sort of consensual arrangement with an Indian or

tribe, such as a contract; and (2) in those very narrow situations in which the conduct of a non-

Indian “imperils the subsistence of the tribal community.” The Tenth Circuit, in Crowe,61

reasoned that neither exception to the general rule against tribal court jurisdiction applied.

The Tenth Circuit’s analysis of Montana and conclusion that the Crowe law firm’s

probability of success on the merits was “without question” is equally applicable to the instant

case. But more applicable still is Hicks, which was decided 20 years after Montana, and further

expanded the limits on a tribal court’s subject matter jurisdiction with respect to actions brought

against state and local officials with the following holding: “[S]tate officials operating on

reservation . . . are properly held accountable for misconduct and civil rights violations in

either State or Federal Court, but not in Tribal Court.” Based upon this Supreme Court62

precedent, Tribal Defendants have no basis for asserting that the Ute Tribal Court has jurisdiction

to hear and decide the Re-filed Murray Action.

Success on the merits is made even more likely so by the immunity enjoyed by the

450 U.S. 544(1981).60

Id. at 1153-54(Quoting from Plains Commerce Bank v. Long Family Land & Cattle61

Co., 554 U.S. 316, 341 (2008).

Hicks, 533 U.S. at 369(emphasis added). 62

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Uintah/Vernal Plaintiffs. Uintah/Vernal Plaintiffs, as governmental actors and officials, are

entitled to immunity because, in MacArthur v. San Juan County, the United States District63

Court for the District of Utah ruled that counties and their employees are immune from suit in

tribal court. That ruling was subsequently affirmed by the United States Court of Appeals for the

Tenth Circuit. And, “immunity means immunity from suit, not simply immunity from64

liability.” Thus, even if the Ute Tribal Court somehow enjoyed subject matter jurisdiction to65

adjudicate common-law tort claims against non-Indians in general, Uintah/Vernal Plaintiffs

cannot be sued in the Ute Tribal Court because they are immune from suit in that forum.

B. Irreparable Injury

A plaintiff satisfies the irreparable harm requirement for issuance of a preliminary

injunction by showing “a significant risk that he or she will experience harm that cannot be

compensated after the fact by monetary damages,” including “whether such harm is likely to

occur before the district court rules on the merits.” In Crowe, the District Court found that the66

law firm had met the irreparable harm requirement because: (1) there was “a significant risk that

Crowe will be forced to expend unnecessary time, money and effort litigating the issue of their

fees in the Muscogee Nation District Court - - a court which likely does not have jurisdiction

391 F. Supp. 2d 895, 1037 (D. Utah 2005). 63

MacArthur v. San Juan County, 497 F.3d 1057 (10th Cir. 2007). 64

Brown v. United States Postal Service, 338 Fed. Appx. 438, 440 (5th Cir.65

2009)(unpublished).

RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1210 (10 Cir. 2009).th66

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over it;” (2) because if the preliminary injunction did not issue, there was a significant risk that67

the firm would be subject to inconsistent judgments if the District Court ruled that the Tribal

Court had exceeded its lawful jurisdiction and the Tribal Court found against Crowe; and (3)68

because the firm would be left without a legal remedy if the Tribal Court proceedings were not

enjoined because if the District Court eventually found that the Tribal Court was without

jurisdiction, the Muscogee Tribe, the Tribal Court, and the judge would be immune from a suit

for money damages.69

The irreparable harm noted by the District Court in Crowe applies equally to the

Uintah/Vernal Plaintiffs in the instant case. They have been required and will be required to

needlessly expend time and money defending themselves in the Re-filed Murray Action when,

based upon Hicks and its progeny, the Ute Tribal Court has absolutely NO jurisdiction.

The Uintah/Vernal Plaintiffs also run an even more significant risk of inconsistent

judgments because the Original Murray Action, already decided in their favor, is now on appeal

to the Tenth Circuit. In fact, the potential for inconsistent judgments is a given since the Ute

Tribal Court clearly lacks subject matter jurisdiction and the results of any re-litigation of the Re-

filed Murray Action in the Ute Tribal Court are predictable: regardless of the facts or law, the

Uintah/Vernal Plaintiffs will not prevail because of the previously noted serious conflicts-of-

609 F. Supp. 2d at 1222.67

Id. at 1223.68

Id. at 1223. Accord Kan. Health Care Ass’n v. Kan. Dep’t of Social & Rehab Serv., 3169

F.3d 1536, 1543 (10th Cir. 1994)(Agreeing with the District Court’s finding that plaintiff’s injurywas irreparable when defendant is immune from monetary damages).

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interest inherent in their proceeding in the Ute Tribal Court (i.e., Ute Tribe as a party and funding

the case via a decision of the Business Committee, the Ute Tribal Court and Judge being parties

to the instant case, the Business Committee also serving as the Ute Tribal Appellate Court, and

the Frederick Peebles law firm representing all of them).

Consequently, there is a significant risk of conflicting judgments if the Re-filed Murray

Action is allowed to proceed in the Ute Tribal Court, a risk that is rendered even more serious if

the Tenth Circuit affirms the District Court’s dismissal of the Original Murray Action because

that ruling would dispose of the common-law wrongful death claims now before the Ute Tribal

Court as well. Yet, the Uintah/Vernal Plaintiffs doubt that the Tenth Circuit’s affirmance would

derail Tribal Defendants continued prosecution of that case in the Tribal Court. If the Re-filed

Murray Action is allowed to proceed, Uintah/Vernal Plaintiffs would then be subjected to re-

litigation of claims they have already prevailed on, before a tribal court that does not have

jurisdiction over them. That is irreparable harm.

The irreparable harm that Uintah/Vernal Plaintiffs will incur if a preliminary injunction

does not issue is greater, far greater than the harm identified in Crowe. To begin with, as

previously noted, Uintah/Vernal Plaintiffs are immune from suit in the Ute Tribal Court, and

“immunity means immunity from suit, not simply immunity from liability.” Therefore, that70

right of immunity will be taken from them if they are forced to defend against the Re-filed

Murray Action, as will be their “federal right” to be protected against the unlawful exercise of

Brown v. United States Postal Service, 338 Fed. Appx. 438, 440 (5th Cir. 2009)70

(unpublished).

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tribal court judicial power. Another irreparable injury that will be inflicted upon Uintah/Vernal

Plaintiffs will be the loss of their constitutional right of due process if the Re-filed Murray Action

proceeds in Tribal Court because Tribal Defendants are on record stating that the Uintah/Vernal

Plaintiffs will not receive the due process that they are entitled to under the United States

Constitution. The deprivation of a constitutional right is, as a matter of law, irreparable injury,71

especially when the persons responsible for that deprivation are immune from suit for money

damages.72

C. Balance of Harm

After determining the harm that will be suffered by the moving party if the preliminary

injunction is not granted, the Court must then weigh that harm against the harm to the defendant

if the injunction is granted. In Crowe, the District Court struck that balance in favor of the law73

firm because a temporary delay of the Muscogee Tribal Court proceedings until the District

Court could rule on the issue of the Tribal Court’s jurisdiction would not cause any injury. 74

That rationale applies to the instant case, and even more so given the Uintah/Vernal Plaintiffs’

immunity from suit in the Ute Tribal Court; the loss of civil rights they face if the Re-filed

Murray Action moves forward in that forum and their inability to recover damages from the Ute

See Elrod v. Burns, 427 U.S. 347, 373(1976)(“The loss of a First Amendment71

freedom, for even minimal periods of time, unquestionably constitutes irreparable injury”).

See supra. footnote 69.72

Universal Engraving, Inc. v. Duarte, 519 F. Supp. 2d 1140, 1149 (D. Kan. 2009).73

609 F. Supp. 2d at 1224. 74

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Tribe, Ute Tribal Court, and Ute Tribal Judge for their wrongful and illegal prosecution of the

Re-filed Murray Action.

D. Public Interest

The District Court in Crowe commenced its analysis of the public interest element for

issuance of a preliminary injunction by noting that the law allowed it to “inquire whether there

are policy considerations that bear on whether an injunction should issue.” Hence, the Crowe75

Court weighed the public’s interest in allowing the Muscogee Tribal Court to exert jurisdiction

over the law firm against the public’s interest in preventing the allegedly excessive exercise of

tribal court jurisdiction. The Crowe Court concluded that the “unrestrained exertion of tribal

court power over non-consenting non-members is not in the public’s interest, weighing in favor

of the preliminary injunction.”76

Again, the public interest identified and weighed in Crowe applies equally to the present

case. But there are also other important public interests at stake in the instant case that were not

before the District Court in Crowe. There is, for example, the public’s interest in effective

government that was identified by the Hicks Court as the chilling effect upon State and local

government, especially law enforcement, if a tribal court can exert jurisdiction over state and

Id. 75

Id. See Ford Motor Co. v. Todecheene, 221 F. Supp. 2d 1070, 1088 (D. Ariz.76

2002)(Granting Motion for Preliminary Injunction in case challenging tribal court jurisdictionover a non-member because allowing the tribal court to have unrestricted authority over non-members was not be in the public’s best interest). Accord See MacArthur, 309 F.3d at 1225(Recognizing a “federal right” to be protected against the unlawful exercise of tribal courtjudicial power).

24


local officials.

According to the Hicks Court: “[I]f a tribe can ‘affix penalties to acts done under the

immediate direction of the [state] government, and in obedience to its laws.’ ‘The operations of

the [state] government may at any time be arrested at the will of the [tribe].’” Furthermore,77

“‘permitting damages suits against governmental officials can entail substantial social costs,

including the risk that fear of personal monetary liability and harassing litigation will unduly

inhibit officials in the discharge of their duties.’” Thus, the public’s interest in effective78

government, especially law enforcement, will certainly not be served if a preliminary injunction

does not issue so as to allow this Court to resolve the issue of Tribal Defendants’ jurisdiction

over the Uintah/Vernal Plaintiffs.

There is, too, the public’s interest in seeing that no one is deprived of their constitutional

rights by a tribunal that is created and overseen by the federal government, as is the Ute Tribal

Court. The public’s interest in seeing that everyone is accorded their basic civil rights is in fact

the foundation of the Constitution and the Bill of Rights.

Lastly, there is the overriding public interest in maintaining respect for the orders and

process of the United States District Courts. If Tribal Defendants can lose in the United States

District Court, then simply re-file in the Ute Tribal Court because they are not satisfied with the

results, it eviscerates the authority of and respect for the federal courts, it chills state actors in the

discharge of their duties, and negates six years of costly litigation as well as the expenditure of

Id. at 365. (Quoting from Tennessee v. Davis, 100 U.S. 257, 263 (1879).77

Id. (Quoting from Anderson v. Creighton, 483 U.S. 635, 638 (1987).78

25


the already taxed resources of the federal court.

CONCLUSION

A preliminary injunction should issue enjoining prosecution of the Re-filed

Murray Action until this Court can decide the matter of the Ute Tribal Court’s jurisdiction over

the Uintah/Vernal Plaintiffs. Uintah/Vernal Plaintiffs’ Motion for Preliminary Injunction should

likewise be set for an expedited hearing.

Dated this 17 day of June 2015.th

SUITTER AXLAND, PLLC

/s/ jesse c. trentadue Jesse C. TrentadueBritton R. Butterfield

Attorneys for Uintah/Vernal Plaintiffs

T:\7000\7619\16\MOTION FOR PRELIMINARY INJUNCTION.wpd


CERTIFICATE OF SERVICE

I hereby certify that on the 17 day of June, 2015, I electronically filed the foregoingth

MOTION with the U.S. District Court for the District of Utah. Notice will automatically be

electronically mailed to the following individual(s) who are registered with the U.S. District

Court CM/ECF System:

J. Preston StieffJ. PRESTON STIEFF LAW OFFICES

136 East South Temple, Suite 2400Salt Lake City, Utah 84111Attorney for Defendants Ute Indian Tribe ofthe Uintah And Ouray Reservation; BusinessCommittee for the Ute Indian Tribe of theUintah and Ouray Indian Reservation; UteTribal Court of the Uintah and OurayReservation; Honorable William Reynolds;Debra Jones; and Arden Post

Scott D. CheneyGreg SoderbergAssistant Utah Attorneys GeneralSean D. ReyesUtah Attorney General160 East 300 South, Sixth FloorP.O. Box 140856Salt Lake City, Utah 84114-0856

Frances C. Bassett, Pro Hac ViceJeffrey S. Rasmussen, Pro Hac ViceFREDERICKS PEEBLES & MORGAN LLP

1900 PLAZA DR Louisville, CO 80027-2314Attorney for Defendants Ute Indian Tribe ofthe Uintah And Ouray Reservation; BusinessCommittee for the Ute Indian Tribe of theUintah and Ouray Indian Reservation; UteTribal Court of the Uintah and OurayReservation; Honorable William Reynolds;Debra Jones; and Arden Post

/s/ jesse c. trentadue

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